A division bench of Justice A S Oka and Justice A S Gadkari was hearing a bunch of appeals filed by one of the accused in the case, Sameer Kulkarni. (Representational Image)

The Bombay High Court on Wednesday said that the order passed by the trial court to permit the use of photocopies as secondary evidence appears to be non est (not valid) in the 2008 Malegaon blast case.

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A division bench of Justice A S Oka and Justice A S Gadkari was hearing a bunch of appeals filed by one of the accused in the case, Sameer Kulkarni. He has challenged the decision of the special National Investigating Agency (NIA) court, permitting the NIA to bring photocopies of missing witness statements on record and lead evidence in support of the same.

The counsel told the court that the order passed by the trial court is an interlocutory order, no appeal could have been filed against it. For a long time, photocopies are used by the accused for various hearing, therefore, they could not have objected.

Justice Oka said: “This order (of the trial court) prima facie appears non est. The question is who took these photocopies? Who is this person who has taken the photocopies? Is he examined?” He added: “There has to be basic finding (by the trial court) that these are copies taken from originals.” The court has posted the matter on February 5 for final orders.

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In April, 2016, the trial court had been informed that original documents, including 13 witness statements recorded before the magistrate under Section 164 of the Criminal Procedure Code, and two statements of the accused recorded under MCOCA, were untraceable. In January, 2017, the trial court had allowed the NIA to use available copies as secondary evidence in place of papers that have gone missing.

Kulkarni told the court that the trial court should not have permitted the use of photocopies, as there is no evidence to show that the photocopied documents were authentic copies of the original statements.